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Legal Phases of the 

Lincoln and Douglas Debates 



-7/ 




^Annual Address before the 

State "Bar Association of Minnesota 

At [Minneapolis, July 14, /pop 



By Daniel Fish 



[Reprinted from the Proceedings] 
1909 



Er4ST 

T53 



25 Ay 'OS 



Legal Phases of tk Lincoln and Douglas Debates 

A government of the people, by and for the people, cannot main- 
tain protracted warfare, against any considerable power, unless the 
people are fairly and firmly convinced of its justice- The American 
republic, at any rate, must be able to show that its occasions for 
war are legally, no less than morally, impregnable; for the American 
conception of justice comprehends both. To that end co-operation 
on the part of the legal profession is indispensable, a truth signally 
illustrated in the large part which the Bar of America has taken in 
the two great and significant wars of our national history. 

Both were waged on the national side in support of definite 
principles of law; both were fought and won in the arena of de- 
bate; and the true history of each is to be found in the annals of an 
intellectual struggle rather than in the story of battles or cam- 
paigns. The War of Independence was bottomed on the denial, as 
a proposition of law, that parliament had authority to legislate for 
the Colonies without their consent, upon any subject whatsoever. 
Not at first, to be sure— the doctrine was gradually developed as 
the great argument proceeded. From a mere protest against oner- 
ous taxation, upon considerations of expediency only, the fathers 
passed to the ground that there could be no lawful taxation with- 
out representation in the taxing body. Otis never went further 
than that in his leadership of new England revolt, but his succes- 
sors, driven from his position by logical necessity, advanced to the 
final stand that America was legally exempt from parliamentary 
control altogether. 

In like manner the legal basis of the War for the Union 
emerged slowly and painfully from a flood of conflicting ideas. At 
first the controversy involved only the constitutional power of Con- 
gress to exclude slavery from the federal territories; next the legal- 
ity of secession; and finally the constitutional right of the govern- 
ment to invoke the war power in defence of its own existence. It is 
often said that these problems were insoluble except by the arbitra- 
ment of arms. In fact they were examined and settled in the forum of 
reason, else force would have been of no avail. The nation was 
first convinced, else the requisite military and naval power would 
have been lacking. We know that they were settled rightly, an 
assurance that could not rest upon the chance outcome of a mere 
trial of fighting ability. Principle triumphed, and not brute force. 

If I were to select a single episode of the revolutionary strug- 
gle as best illustrating the very pith of it, I would point to the offi- 
cial discussion carried on with consummate ability between Thomas 

(3) 



Hutchinson, the last royal governor of Massachusetts, and the two 
houses of the General Court, led by Otis and Adams. Not else- 
where, probably, can we find a more graphic exposition of the legal 
contentions then mooted. And it is only through the study of some 
such record of the times that we can reach a correct understanding 
of the war which followed. Much more distinctly, however, as a 
key to Civil War history, stands out that memorable series of de- 
bates between Lincoln and Douglas in 1858. The Massachusetts 
duel was fought under the immediate threat of war; that of Illinois 
was but lightly shadowed by a sinister cloud hanging low in the 
south, its portent not yet widely observed. But the war of seces- 
sion nevertheless was actually impending; the beginnings of a bloody 
national conflict might have been heard in the clash of ideas cham- 
pioned by two patriotic sons of the prairie state. And Abraham 
Lincoln, a village lawyer but slightly known outside his own state 
but soon to be the Commander-in-chief of a million armed men, was 
there marshalling and moulding the moral forces which were to 
give the victory. 

Outwardly the scene presented only a contest for office. To 
Douglas, the stake was more than a senatorship, for he was an 
avowed and hopeful candidate for the presidential chair. He could 
not give up the one without certain loss of the other. It may be, 
though it is by no means certain, that Lincoln saw in his own local 
triumph a possibility of like preferment for himself — he was not so 
modest as his words, taken at their face, might seem to imply. But 
it is certain that he was impressed far more deeply than Douglas by 
the gravity of the issues with which he was dealing. Humorist that 
he was, he was far more serious by nature than the truculent an- 
tagonist whose sense of fun was woefully deficient. But if lack- 
ing in moral power, Douglas possessed advantages which for the 
exigencies of popular debate were never surpassed — a kind of reck- 
less courage, remarkable fluency combined with terseness and vigor 
of style, a conscience not over rigid, and a quick eye for exposed 
points of attack. If Lincoln had intellectual reach corresponding 
to his superior stature, Douglas had the agility and audacity typi- 
fied in a bantam figure. 

We must drop back a little in order to obtain a favorable view 
of this unique contest. The institution of Negro Slavery, originally 
lawful in all the states, had died out in the North, not from pure 
philanthropy we may agree, but from lack of adaptation to North- 
ern interests. Where slave labor was not especially profitable the 
practice of owning slaves yielded readily to the scruples of those 
who for any reasons opposed it. South, on the contrary, particu- 
larly in the cotton-growing regions, and more especially after the 
invention of Whitney's "Yankee notion"' called the cotton gin, which 
vastly increased the production of that staple, slave labor became 
increasingly desirable. The profits, moreover, extended to regions 
beyond the cotton belt, where slave breeding for the market grew 

(4) 



into favor. Thus two sj'stems of labor, antagonistic in character, 
produced two modes of life radically unsympathetic and, in many 
features not merely sentimental, distinctly hostile. 

Out of these differences arose an active rivalry, on the ore 
side for the extension of slave territory, and on the other for its 
curtailment, or at least its restriction. To the political rancor in- 
herent in such a contest was added the bitterness due to attack an J 
defence on the part of extremists. The abolitionist, so called, 
was unsparing in denunciations of slave holding upon moral grounds, 
the hot-blooded Southron responding angrily with countercharges 
of hypocrisy and bad faith. To those of us who remember the 
ferocity of this ante bellum conflict these recitals seem idle, but 
none can appreciate the gigantic struggle of arms of which the 
Lincoln and Douglas campaign was the prelude without some knowl- 
edge of the heat and intensity of the slavery quarrel. 

Successive compromises by Congressional action — the latest 
known as the compromise measures of 1850 — extension of Southern 
territory southward by the acquisition of Texas and parts of Mexico, 
and continued success of the pro-slavery party at presidential elec- 
tions, had postponed the evil day; but in 1854 the bill for the or- 
ganization of Kansas and Nebraska, championed by Douglas in the 
Senate, ruthlessly repealed all the compromises and re-opened the 
partly healed wounds. These compromise measures, it should be 
said, fixing the lines across the territories beyond which slave hold- 
ing should not be permitted, were based! upon the legal theory that 
Congress had plenary authority over that subject. As the Congress 
of the Confederation had dedicated the great Northwest Territory 
to freedom by the Ordinance of 1787, so it was assumed that un- 
der the constitution Congress might lawfully exclude slavery from 
every part of the public domain not already organized into a state. 
The Kansas-Nebraska bill, which provided for the admission of those 
territories into the Union with or without slavery, as their respec- 
tive inhabitants might elect, was upon its face a mere refusal on 
the part of Congress to legislate either for or against the estab- 
lishment of that order of society; but since both territories were 
wholly north of the division line so lately agreed upon, its passage 
was fiercely resented. The compact of 1850, which both the old 
parties had| effusively approved in speech and platform, was re- 
garded as shamelessly violated and the whole controversy was start- 
ed afresh with redoubled acrimony. 

This Kansas and Nebraska legislation was defended upon the 
legal ground that the prior compromises were void, in so far as 
they negatived the right of any slave owner to carry his chattels 
into the territories and hold them there as his own; that Congress 
was constitutionally powerless thus to discriminate between kinds 
of property; that the brute cattle of the free state immigrant and 
the human cattle of the slave owning settler were alike property, 
and their possessors equally entitled to protection in the common 

(5) 



domain; and that the question of admission or exclusoin to or from 
any part of the National territories must await the formation of a 
state, which alone could decide. And Senator Douglas, who had 
been especially voluble in felicitating the country upon the com- 
promise measures of but four years before, now lent himself to 
the enactment of this new doctrine into a federal statute. He was 
compelled to do so, in truth, or else forego all hope of becoming the 
presidential candidate of his party. 

The angry episode known as the "Kansas imbroglio" speedily 
followed, a fierce struggle for numerical and strategic supremacy in 
the coming state, a struggle attended by fraud and violence within 
the territory and by intense excitement throughout the Union. The 
story of "Bleeding" Kansas was familiar in every Northern house- 
hold. It was re-told by participants fresh from the field to the 
first state convention of Illinois republicans at Bloomington on May 
29, 1856, where Lincoln's famous "lost speech" was delivered — lost 
because its fervor and eloquence led all the reporters to drop their 
pencils and join in the shouting. Douglas had failed of the nom- 
ination that year, the prize going to Buchanan, but 1860 was not 
far away. Buchanan was elected, last of the pro-slavery presidents, 
over John C. Fremont, the first candidate of the new republican 
party. Lincoln, meanwhile by his narrow defeat for the senate in 
1854, at the hands of Lyman Trumbull, and by his activity in suc- 
ceeding campaigns, had become the unquestioned leader of the Il- 
linois phalanx and was beginning to be recognized elsewhere in 
political circles. 

Two days after the inauguration of President Buchanan the 
legal contention of his party was signally re-enforced by a decision 
of the United States Supreme Court (in the case of Dred Scott) 
wherein it was explicitly laid down that Congress was indeed pow- 
erless to prohibit the holding of slaves within the territories. Scott 
had brought trespass in the U. S. Circuit Court of Missouri against 
one Sanford, alleging assault and imprisonment of himself and like 
offences against his wife and daughters. As jurisdictional facts he 
declared himself a citizen of 'Missouri, Sanford being a resident of 
New York. There was a plea to the jurisdiction, based upon the 
averment that Scott was not a citizen of Missouri, because, in the 
words of the pleader, "he is a negro of African descent, whose an- 
cestors were of pure African blood and were brought into this coun- 
try and sold as negro slaves." Scott demurred to this plea, there- 
by admitting the facts so alleged. The Circuit Court sustained this 
demurrer, whereupon the defendant pleaded over, justifying the 
acts complained of upon the ground that plaintiflF, his wife, and his 
daughters were all slaves owned by him and that the pretended 
trespasses were within his rights as master; to which plea there was 
the usual replication. 

At the trial it was agreed, in effect, that Scott and his family 
were slaves as claimed, unless their emancipation had resulted from 

(6) 



the fact, also admitted, that for some years prior to 1838 the parent 
couple, after a short residence in Illinois, had lived with their re- 
spective masters in a territory of the United States north of lat- 
itude 36:30, to wit. at Fort SnelHng, now in Minnesota. As to this, 
plaintiff invoked the Act of March 6, 1820, known as the Missouri 
Compromise, whereby it was expressly declared that no slave should 
be owned or held north of the line just named. The trial court 
held that this circumstance did not work a manumission of either 
parents or children; that Scott was still a slave and therefore not a 
citizen; and upon the verdict returned, with fine scorn of consist- 
ency, judgment was rendered in favor of defendant, and against his 
own property, for his taxable costs. This judgment was reviewed 
on writ of error and was twice argued in the Supreme Court. The 
majority opinion, given by Chief Justice Taney, answers two ques- 
tions which are stated as follows: "Had the Circuit Court juris- 
diction to hear and decide the case between these parties?" Held, 
that it had not, for the reason that a negro, descended from slaves, 
was not and could not be a citizen, within the meaning of the con- 
stitution, whether bond or free. 2d. "If the court had jurisdiction, 
is the judgment it has given erroneous or not?" Held, erroneous, 
not on the merits, but for the reason that the court, having no ju- 
risdiction of the case, (diverse citizenship not existing), no judg- 
ment could be given therein save a judgment of dismissal. 

It would be impossible for "^ny tongue or pen to portray the 
astonished rage which this deliverance produced on the one side, or 
the uproarious joy on the other. The official report of it was issued 
for popular use in cheap pamphlet form and its 240 pages were 
eagerly scanned. Of the myriad copies thus circulated but few 
remain, one of which I have preserved as a curious memento of the 
times. The case might have been disposed of briefly, upon the ju- 
risdictional ground alone, but the record is extremely voluminous. 
All of the Justices filed elaborate opinions, two of them dissenting. 
The concurring majority seemed to be under the delusion that the 
whole unhappy controversy might be quieted by a labored judicial 
exposition. Naturally the leading opinion was misunderstood and 
misrepresented. It is widely believed to this day, I suppose, that it 
declared as a fixed rule of current law that a negro, whether free 
or not, "had no rights which the white man is bound to respect." 
It does not go quite that far. The remark occurs in the course of 
a highly prejudiced historical review and has reference, not to the 
law or facts of the time, but to opinions said to have been universal 
when the Union was formed. 

But it matters little. Dred Scott and his family were prob- 
ably the only slaves ever held under that decision. The question 
went to a higher tribunal, where the precedent was not followed— 
over-ruled by the stump speeches of Abraham Lincoln of Illinois. 

Another event of that period entered largely into the Lincoln 
and Douglas campaign and must be briefly noticed. The lawlessness 

(7) 



prevalent in Kansas had led to the assembling, at Lecompton. of a 
bogus or "snap" convention, dominated by pro-slavery interests and 
impudently claiming to represent the resident majority. This body 
framed a proposed constitution which would have fastened slavery 
upon the state irrevocably and through a series of tricky manoeuvers, 
caused it to be laid before Congress as a basis for admission into 
the Union. Despite abundant proof of its fraudulent origin and char- 
acter the President and his party attempted to consummate this 
Lecompton swindle. Much as Douglas disliked to break with the 
slave protagonists he could not aid in that measure and retain for 
an hour the support of his home constituency. Making a virtue of 
necessit}', therefore, he joined loudly in opposition and contributed 
not a little to the defeat of a nefarious intrigue. But his political 
fate was sealed. The South already had begun to doubt his fidelity 
and now, to complete his eventual ruin, a few sap-headed anti-slavery 
leaders were led to treat him as a hopeful convert to their cause. 
In this posture of affairs the "little giant" came home to urge his 
claims for a second return to the Senate. 

It was a very different reception from that accorded to him 
four years earlier, when he came red-handed from the slaughter 
of the compromise measures. Then his first Illinois audience, at 
Chicago, overcoming his resolute eflfort to be heard, literally drove 
him from the stand in a whirlwind of obloquy. Now. restored to 
favor by his spectacular resistance to the rape of Kansas, he was 
met with extraordinary demonstrations of approval, especially in 
northern Illinois where free-soil democracy was largely predom- 
inant. And many republicans joined in the acclaim, misled thereto 
by the advice of Horace Greeley and others in the East who deemed 
it "good politics" to permit the re-election of a revolting democrat 
by default. But the Buchanan office-holders were mildly against 
him, and the cry that he was "no longer a democrat" had consid- 
erable effect in the southern counties derisively called "Egypt." It 
is not clear that the Buchanan administration took much part in this 
opposition, but Douglas made the most of it wherever an appeal 
for sympathy on that ground could be made with effect. 

Partly as a means of circumventing the mischievous Greeley 
program the republicans of Illinois adopted a course then without 
precedent; that of formally nominating their own candidate for the 
senatorship, thus directly appealing to the popular vote. V^ery likely 
Lincoln was a party to this move, though not openly so for obvious 
reasons. His letters of that period show that he was keenly alive 
to the evils of such a defection as the highly influential "Tribune" 
had proposed. At any rate, when the state convention, called to 
nominate candidates for state offices, had unanimously named Abra- 
ham Lincoln as its "first, last, and only choice" for the Senate, 
he was ready with an acceptance speech more carefully prepared 
than any political address he had ever delivered. It was the famous 
"House-divided" speech, opening with a declaration of his belief 

(8) 



that the nation could not endure, permanently, half slave and 
half free. 

"I do not expect the Union to be dissolved." he continued, "I 
do not expect the house to fall — but I do expect it will cease to be 
divided. It will become all one thing or all the other. Either the op- 
ponents of slavery will arrest the further spread of it, and place it 
where the public mind shall rest in the belief that it is in the course 
of ultimate extinction, or its advocates will push it forward till it 
shall become alike lawful in all the states, old as well as new, North 
as well as South." 

The prophetic character and the profound significance of that 
utterance are wholly lost upon those who do not remember, or have 
not studied, the awful crisis through which the nation passed with- 
in the next seven years. No voice had spoken the like before, no 
man had thus laid bare the delusions of compromise, or summoned 
the public conscience so impressively. More than four months 
elapsed before William H. Seward echoed the same warning in his 
"irrepressible conflict" speech at Rochester. Lincoln's was the first 
clear call to a final choice between two utterly antagonistic systems, 
not of labor merely but of social organization, one of which must 
destroy the other that peace might come. The argument which 
followed this solemn exordium clearly disclosed the prevailing tend- 
ency toward universal bondage and the appeal was for a reversal 
of that tendency through defeat of the pro-slavery party. 

But how, lawfully and peacefully, could such a reversal be ac- 
complished? How arrest the further spread of slavery, how mark 
it for ultimate extinction? Certainly not by acquiescence in the 
Dred Scott decision as a rule of political action; more certainly not 
by approving the course of Douglas, father of the Kansas-Nebraska 
bill whose legal theory the Supreme Court had so opportunely con- 
firmed. So the validity of the Dred Scott decision became the great 
and pivotal question which the people by their votes must decide. 

The relations of this judicial pronouncement to the political 
activities of Senator Douglas call for but little further explanation. 
Having been coerced by his presidential ambitions, as we have seen, 
into supporting the compromise repeal, he necessarily had accepted 
the slogan of the repealers, to wit: "popular sovereignty" — in a 
word the sovereign right of the inhabitants of a territory to decide 
for themselves whether their state, when formed, should be slave 
or free. The settlers of the new commonwealth, it was said, were 
the only proper judges of the industrial system best suited to their 
needs, and now it was decided that they were the only lawful judges. 
Under the operation of this doctrine the fierce struggle for Kansas 
went on between the "border ruffians" of Missouri, so called, and 
immigrants from the North aided it was claimed by the anti-slavery 
societies. Naturally the bona fides of such settlements was ques- 
tioned and popular sovereignty, in the speech of the day, became 
"squatter sovereignty"; a term sufficiently descriptive and not quite 
so taking. 

(9) 



The political dogrma thus christened and nicknamed was writ 
large in the Kansas-Nebraska law. As finally shaped that measure 
contained this singular declaration: "It being the true intent and 
meaning of this act not to legislate slavery into any state or terri- 
tory, nor exclude it therefrom; but to leave the people thereof per- 
fectly free to form and regulate their domestic institutions in their 
own way. subject only to the constitution of the United States," 
language which was wittily characterized at the time as "a stump 
speech injected into the belly of the bill." From 1854 onward, 
Douglas had passionately lauded this "gr-r-eat principle," as he 
fondly termed it, this "sacred right of self-government," upon which 
the nation was founded and without which the government must 
surely fall. By continued insistence on its fundamental necessity 
he had gradually overcome the resentment of his party at home 
and had maintained to some extent his footing in the South. 

The Supreme Court, however, in denying to Congress all power 
over slave holding in the territories, had equally denied such power 
to the people of the territories. Slave property there was even 
more sacred than the "sacred right of self-government," and that 
was a rude blow to the "great principle" upon which Douglas had 
so often and so loudly proclaimed his purpose to stand or fall. The 
people were indeed "perfectly free" to form and regulate for them- 
selves a system of slavery, but they were not free to establish or 
promote the opposite system of freedom. 

But Douglas had faith, apparently, that majorities of the people 
could be "fooled all the time," and experience thus far had not 
taught him otherwise. After supporting and vociferously applauding 
the compromise measures- of 1850, he had fathered and defended 
their repeal in 1854, and this sudden change of front, though hotly 
condemned at the moment, had now been forgiven. His opposition 
to the Lecompton fraud, absolutely necessary to his retention of 
a seat in the Senate, was magnified into a heroic defence of the 
"great principle." Wlith an eye to the South he gave frequent as- 
surances that he "cared not" whether slavery in Kansas was "voted 
up or voted down," insisting only upon the exercise of squatter 
•Qvereignty in the form of a free election. Surely the South would 
condone, in a candidate for the presidency whom she could not 
hope to elect without Northern aid, so venial an oflfense as outward 
conformity on his part to a dogma which the South had forced upon 
him. He would defend the Dred Scott decision, which had opened 
all the territories to slavery, and he would retain the requisite 
Northern support by continued thrumming of the dulcet note which 
had restored a local popularity once seemingly lost. And the South- 
ern leaders, seeing the need, would forgive the deed. 

It is hardly possible, I think, to regard Douglas as a man of 
keen moral perceptions or deeply sincere; but the lure of the pres- 
idency is a pitiless searcher of character. Even Webster, the "god- 
like Daniel," staggered almost to a fall under the same unspar- 
ing test. _ 

(10) 



Judge Douglas (for h« bore that title by reason of a circum- 
stance to be mentioned later) opened his campaign at Chicago on 
the 9th of July, 1858. assaulting the main positions of Lincoln's ac- 
ceptance speech with his accustomed dash and vigor. Lincoln re- 
plied in the same place on the following evening and the skirmish 
proceeded in a somewhat desultory fashion throughout the month. 
Between July 24th and 30th. dispositions were made for bringing on 
the general engagement. Seven meetings were agreed upon, one in 
each Congressional district, the first two well to the north, the third 
in lower Egypt, then three in the central regions, and the last at 
Alton, where Lovejoy had suflfered martyrdom at the hands of a 
pro-slavery mob. The dateS' extended from August 21st to the 15th 
of October. 

The call for a joint discussion came from Lincoln. The late 
Alex. K. McClure, in an address given in February last, only a few 
weeks before his lamented death, asserted that Lincoln sent his chal- 
lenge solely because he had learned that Douglas was about to chal- 
lenge him; implying that otherwise the encounter would have been 
avoided. Col. McClure was generally accurate and on some phases 
of Lincoln history his knowledge was uncommonly full, but he 
gives no authority for this statement and I can find nothing to con- 
firm it. Certain it is that much outcry was made at the time by 
partisans of Douglas that Lincoln was constantly dogging his op- 
ponent's footsteps in order to gain a hearing from the latter's larger 
audiences. The advantages to be gained from an opportunity to 
speak directly to the Douglas adherents sufficiently explain the chal- 
lenge. Moreover, the statement is contradicted by the record, for 
in response to the proposal Douglas querulously wrote that it came 
too late — after appointments had been made for him throughout the 
state "covering the entire period until late in October." Never- 
theless he accepted, being permitted to fix the times and places of 
meeting to suit his own convenience and to reserve for himself 
four closing speeches out of the seven. 

Time does not permit us to dwell upon details of the several 
'debates, fascinating as they are to students of the men and the 
times. They now hold a place among the classics of American his- 
tory. So late as the beginning of 1894 but one edition of them ex- 
isted in accessible form, the dingy little volume issued in 1860 as a 
republican campign document. Within the past fifteen years more 
than a dozen verbatim reprints have been made and readily sold. 
There could not be a more admirable text-book of the great ante 
bellum conflict, lighting up as it does the bare facts of the story 
with the human interest of a dramatic and titanic struggle between 
the two contemporary men best fitted, all things considered, to de- 
fend their respective sides in a popular discussion. By Lincoln's 
particular request the original edition of 1860 was printed just as 
the speeches were reported at the time, "without any comment 



(11) 



whatever." and now, after the lapse of fifty years, the editors find 
very little occasion for explanatory notes. 

Of course there was, on both sides, a great deal of mere spar- 
ring at the several meetings, and much repetition, but the methods 
of the two men thus exhibited are full of interest. In his open- 
ing at Ottowa Douglas rapidly reviewed the history of the whig 
party, now succeeded by the republican, and charged that Lincoln 
and Trumbull had conspired together, the one to "abolitionize" the 
whigs and the other the democrats, for the selfish purpose of secur- 
ing to themselves the two Illinois senatorships. Next by plausible 
paraphrase and veiled misstatement he maintained the surprising 
theory that the Kansas-Nebraska act was in strict harmony with the 
compromise measures of 1850. Then, quoting certain resolutions 
which he averred had been adopted by a republican state convention 
in 1854 — two years, by the way, before that partv was formed — he 
sought by a series of questions based thereon to force his rival into 
extreme positions. Then followed a savage assault upon the 
"House-divided" speech, denouncing its criticism of the Dred Sc-ott 
decision as revolutionary if not actually treasonable and demanding 
to know why the government could not endure, as it had endured 
for eighty years, divided into slave states and free as designed by 
the fathers. Lincoln did not rise to supreme heights in his reply. 
He was not aware at the time that the resolutions read by Doug- 
las were those of an obscure county convention in no wise binding 
upon the new party, and seemed in a measure disconcerted by the 
pugilistic rushes of the "little giant," a mode of battle more fully 
illustrated by the concluding speech on the same occasion. But he 
parried the thrusts good naturedly and emerged from the first en- 
counter much better prepared for the second. 

The debate at Freeport. six days later, looms historically above 
all the others- There Lincoln had both the opening and closing 
speeches, and he had measured at close range the strength of his 
foeman. It is very interesting to observe his change of attitude. 
At Freeport and thence to the end Lincoln deftly centered attention 
upon his own candidacy as the important feature. The crude arro- 
gance of Douglas was overmatched by a quiet self-assertion skil- 
fully put on and calmly worn. The twice chosen senator became 
merely a suppliant for another term, the taller giant bestriding the 
stage as its principal figure, contemptuous of office and hero of the 
scene. 

He gained an immediate advantage with the audience by offer- 
ing to answer the seven questions so confidently propounded by 
Douglas, on condition that the latter would agree to answer a like 
number in return, pausing for a reply. Douglas remained silent. 
"I now propose," said Lincoln, "to answer his questions whether he 
answers mine or not:" and he did answer according to their terms. 
But they were framed so loosely that categorical answers amounted 
to nothing. Then, waiving the advantage, he so restated the several 

(12) 



inquiries as to elicit his own views upon all the subjects involved, 
answering each without reserve yet in such manner as to emphasize 
his own conservatism as compared with extreme abolition opinions. 
The crucial interrogatory of the four then submitted to Doug- 
las developed what is known as the "Freeport doctrine." involving 
the utter destruction of its author as a presidential candidate. The 
question was thus stated : 

"Can the people of a United States territory, in any lawful 
way, against the wish of any citizen of the United States, exclude 
slavery from its limits prior to the formation of a state constitu- 
tion?" 

Douglas answered "Yes," declaring with great vehemence that 
the people "have the lawful means to introduce slavery or exclude 
it," for the reason that the institution could not exist for a day or 
an hour, anywhere, unless supported by favoring police regulations, 
and these could be enacted only by a local legislature. Therefore, 
if the people of a territory were opposed to slavery they could ef- 
fectually shut it out simply by withholding the necessary legisla- 
tion, and more effectively by adverse enactments. "No matter" 
shouted the irate' senator, "what way the supreme court may decide 
the abstract question," the people had power to overrule the deci- 
sion through the simple expedient of "unfriendly legislation," 

This answer exposed in a dramatic way the inherent antag- 
onism between the Dred Scott decision ad the "great principle" of 
popular sovereignty, to both of which Douglas had sworn eternal 
allegiance. Of course Lincoln had great fun with it throughout 
the remaining weeks of the campaign. The doctrine under his mer- 
ciless dissection of it finally took form as the burlesque proposition 
that "a thing may lawfully be driven away from a place where it 
has a lawful right to go," a form which enabled the simplest minded 
voter to perceive its absurdity- Remember that Douglas had been 
denouncing his rival furiously because of his objections to the Dred 
Scott decision. It was the duty of every citizen, he maintained, to 
accept the findings of the Supreme Court as final. He had been 
very explicit and very denunciatory in pressing this duty upon his 
opponents. Lincoln had retorted by calling attention to the fact 
that Douglas had once lent himself to a contrary practice. The Su- 
preme Court of Illinois had rendered an unpopular decision and the 
legislature temporarily increased the number of its judges for the 
express purpose of procuring a reversal. One of the added justices 
was Stephen A. Douglas himself, who actually qualifieo and served 
for the brief period necessary to secure a re-hearing and a contrary 
ruling; and it was in that way and no other that he had acquired his 
title of "Judge." But now a more conclusive estoppel came into 
force. Here was Judge Douglas actually rating the Dred Scott de- 
cision as a mere "abstraction," which the people of Kansas might 
properly disregard; that their legislature might effectually override 
it. notwithstanding the court in declaring that Congress had no 

(13) 



power to exclude slave holding from the territories had most care- 
fully explained that, of course, no such power could exist in any 
territorial government. It was a grievous inconsistency and griev- 
ously did Douglas rue it. 

Ai great deal of nonsense has been published about this inci- 
dent. Many of the biographers represent the interrogatory as a 
shrewd device on Lincoln's part to entrap his opponent into a di- 
lemma quite unforeseen, and the tenor of Douglas' answer, if he 
could be induced to answer at all, as a subject of anxious consulta- 
tion between Lincoln and his friends. Something must have been 
said from which this misconception arose, but there could have 
been no slightest doubt how the question would be answered, nor 
that the answer would be given forthwith. The same ground had 
been taken before. In the slashing reply which immediately fol- 
lowed it was declared that "Lincoln has heard me answer that ques- 
tion a hundred times from every stump in Illinois." That was a 
characteristic exaggeration, but there had been no concealment. At 
Bloomington on July 16th. only six weeks before the Freeport meet- 
ing, the same theory had been volunteered in almost the same 
words and the speech had been widely published. The question did 
net "drive Douglas into a corner;" he was already in, being fully 
resolved to renounce the supreme court and all its works, if need 
be. rather than abandon the Great Principle, the sheet anchor of his 
home support. 

Lincoln, on the other hand, was equally prepared to sacrifice 
the senatorship, if that must follow, in order to center public at- 
tention upon the Douglas apostacy. He was combatting the Dred 
Scott principle, and was more than willing to enlist even Douglas 
in aid of that purpose. His aim was to arrest the further spread of 
slavery and thus contribute to its ultimate extinction. To blast the 
presidential aspirations of Douglas was to defeat in advance all 
others of his kind. And if no "Northern man with Southern prin- 
ciples" could be president then the line of pro-slavery presidents 
would become extinct. Probably he meant no more than that in 
saying — if indeed he said it — that "the battle of 1860 is worth two 
of this." 

The immediate struggle ended in a divided victory. Through 
an unfair apportionment Douglas carried the legislature by a ma- 
jority of five, but in the state at large the vote was against him by 
as many thousands. Wlith his re-election assured the "little giant" 
hurried South to make his peace where peace could never again pre- 
vail. Returning, he traveled far and wide in the North only to find 
the great debate still in progress. Lincoln, in hunter's parlance, 
continued to "camp on his trail," finally summing up at Cooper 
Union in New York on February 27th. 1860, in the greatest argument 
upon the law and the facts, as I verily believe, that ever fell from 
mortal tongue. 

None but a great lawyer could have charted the Nation's course 

(14) 



through the infinite legal perplexities of an unprecedented civil con- 
flict. Only a masterly, unerring grasp of controlling principles could 
have unriddled the tangled anomalies of a constitution ordained for 
peace yet regnant over a sea of blood. Only power of analysis and 
skill of speech, both of the highest, could command attention amid 
the crash of cannons and the wreck of war. Only patience immeas- 
urable, and courage unfailing, and charity unbounded, and character 
unspotted, could have held the people to their cruel four years' task. 
Only Abraham Lincoln — for there was no other like him — could have 
vindicated for us, in that hour of supreme trial, the prophetic dream 
of our fathers that the right of every man to be free is indeed a self- 
evident truth and not a fatuous lie. 



(15) 



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